from the that-would-be-a-mistake dept

Late last night I started hearing rumors that Senator Harry Reid was looking to slip a little something extra into the USA Freedom Act: a key part of SOPA. As you should know by now, last week, Reid surprised many by moving for a cloture vote on the USA Freedom Act. While still controversial in civil liberties circles, many are supportive of this bill as a good first step in surveillance reform -- including EFF and ACLU -- while others are perhaps reasonably concerned about what the bill actually provides. Yesterday, the big tech companies came out in favor of it.

However, yesterday evening I heard through the grapevine that Reid also had a little "gift" he was planning to add to the bill, and I've spent a big part of last night tracking down any details I could find. Basically, Reid wants to attach a part of SOPA to the bill: the felony streaming provisions. You may recall that this was the dangerous plan that was a part of SOPA and a companion to PIPA (though not directly in it) that would have turned merely streaming infringing works into a felony. This got a ton of attention after Fight for the Future created its Free Justin Bieber campaign, after noting that Bieber came to fame by streaming lots of videos of music he didn't license the rights to. Even after SOPA died, the White House still listed the felony streaming stuff in its big wish list. And, just a few months ago, the Justice Department told Congress it wanted streaming to be a felony too.

The reality is that this would be a pretty big expansion of criminalizing copyright infringement. As we explained years ago, there's a reason why "performance" isn't considered a felony in copyright law. Expanding the criminalization of copyright, especially for something as simple as streaming content puts a ton of people at risk. And yes, according to Harvard law professor Jonathan Zittrain, someone doing what Bieber did would face jail time, which is ridiculous.

So why is Reid suddenly doing this? What we've heard is that it's a "favor" to his friends at UFC -- Ultimate Fighting Championship -- who are based in Las Vegas, in Reid's home state of Nevada. Reid and UFC go back for years, with UFC being big supporters of Reid, and UFC has worked with Reid on a number of campaigns. UFC has also been one of the biggest supporters of expanding and abusing copyright law for years. The organization has sued its biggest fans, has sued streaming sites like Justin.tv (and lost) and even claimed copyright on videos it has no rights to, taken by fans.

So it's no surprise that with Reid and UFC being so chummy -- while UFC has staked out a strong public position to expand copyright criminalization -- that Reid would like to do this "favor" for his friends. But it's a massive slap in the face to the tech industry -- Reid's second such massive slap this year. Remember, earlier this year, after the tech industry had finally, finally gotten a few important pieces (not nearly enough, but a great start) for patent reform to the finish line, Harry Reid got a phone call from the trial lawyers and killed the whole thing? If he actually goes through with this plan, it will be yet another massive slap in the face to Silicon Valley. Perhaps that's the reputation Harry Reid wants. The Senator who gives out personal favors to friends, and stands in the way of innovation. I can't imagine that will go over well in the long run. Furthermore, it's almost as if Reid has totally forgotten what happened around SOPA. I can assure him that those who fought against SOPA have not forgotten.

The last I've heard on this so far is that Reid is still looking for a bit more support to attach this to the USA Freedom Act. Hopefully no one gives it to him, and this idea simply goes back in the trash can where it belongs.

Update: Senator Reid's office has posted a response to this storyclaiming that this is all spin from "Republicans who want to tank" the USA Freedom Act. That's not actually true. While I'm not going to reveal my (multiple) sources on this, Reid's explanation is not at all accurate. We confirmed this with multiple sources -- nearly all of whom are in favor of the USA Freedom Act. We did hear one rumor that there was an effort under way to get a Republican on board to support this plan, but we didn't report that because we couldn't get detailed confirmation on it. What we're now hearing from others, however, is that Reid's office is trying to point the finger directly at one specific Republican Senator, and we have a request in to his office to see if he wants to comment.

from the can-they-both-lose? dept

As the times continue to change, the past few years have seen a notable increase in LGBT characters appearing in video games. Not that this is any kind of major victory, of course, but it is probably an imperfect barometer for public tolerance of our fellow human beings. There's obviously still a long way to go, and not everyone is embracing tolerance as much as I would personally prefer, but that's okay. These things take time and it's important that we listen to all sides and engage in the debate with integrity, honesty, and respect.

What can make this difficult and challenging is when the worlds of two different, but important, issues you have collide. Such is the case with an upcoming mobile game called Ultimate Gay Fighter, which is finding itself forced to change that name due to legal pressure, likely over a trademark.

According to Handsome Woman Productions, the company in question "believes the UGF brand and related mobile gaming product threatens one of their reality TV series/fighting competition brand." As a result, the developer is unable to defend the game's current name against what founder Michael P. Venker calls a billion-dollar company.

"We have a trademark pending, but the prospect of a potential lawsuit is very intimidating," Venker said. "We don't have the funds to compete with their take-no-prisoners approach. We offered them solutions, but this company remains firm in believing our Ultimate Gay Fighter brand threatens their brand, despite vast differences in our customer base and product."

You don't need to be a master at reading between the thinly-veiled lines to understand that Venker is almost certainly referring to the UFC, or Ultimate Fighting Championship, and their reality TV show, The Ultimate Fighter. They're really the only ones that fit the parameters here. And, while UGF is going ahead and caving to the name change, and looking to crowdsource a new name from their fanbase, it seems likely that they'd at least have a case in challenging the threat in court. Trademark, after all, was built to prevent customer confusion, and it's unlikely that any UFC fan is going to think that UGF is affiliated with the fighting company. In addition, the whole concept behind the game appears to be one of parody, which would be protected as fair use.

In Ultimate Gay Fighter, a forthcoming brawler for iOS and Android, players take on the role of a variety of iconic gay caricatures, including a drag queen, a butch lesbian, an Asian 'twink', a gym bunny, a golden-chain wearing African-American rapper and a drunken bisexual woman. Each character wields a comedic 'gaytality' move that makes reference to common LGBT jokes.

The caricatures are crude at best and, in my opinion, not particularly funny. That said, my opinion means eff-all when it comes to free speech and my sense of allowing speech to rule the day outweighs my offense: UFC shouldn't be bullying this game out of their name. And no, before everyone gets started on my regular attacks on the Washington Redskins organization, this isn't even close to being the same thing. There's nothing inherently offensive in the name Ultimate Gay Fighter, "gay" isn't recognized as having a detrimental definition, and in this case we're talking about taking away speech rights, not opening them up to everyone.

from the all-the-stupid-you-can-handle dept

Not terribly long ago, in this exact same galaxy, we wrote about a lawsuit brought by tattoo artist Christopher Escobedo against THQ for using an accurately depicted Carlos Condit in their UFC fighting game, Undisputed 2010. Just so we're all on the same page here, Condit has a tattoo of a lion on his ribs that was inked by Escobedo in real life, who sued the now-bankrupt THQ over its inclusion in the game for over four million dollars. In a game that depicted hundreds of properly licensed fighters and sold 4.1 million copies, Escobedo claimed damages of over a dollar per game for his tattoo that nobody really seems to know if he actually has a valid copyright claim over. Pretty crazy, right? Shockingly, this case is still going on thanks to Escobedo (though it's playing out in bankruptcy court at this point) and it's taught me a number of things.

Lesson #1: Apparently, an image of a tattoo is worth exactly as much as the image of the entire person.

Escobedo filed an unsecured claim of $4.16 million, asserting that he was entitled to 2 percent of all post-bankruptcy petition net sales of the games. Unfortunately for Escobedo, his first swing was a miss. After the debtors filed a motion to estimate the unsecured claim at $0, the judge valued the tattoo theft claim at $22,500, which was the payment made by THQ to Condit for his image in the video game.

What's dumber than asking for four-mil-do because a tattoo you drew ended up in a game? Well, how about the idea that the depiction of the tattoo is worth exactly as much as that of the entire image of the person including the tattoo. This teaches me something I had never realized: every visible part of me that is not adorned with needle-ink is absolutely worthless. Granted, my parents have been telling me this for years, but I was surprised to hear that they were right all along. Go ahead and read the next lesson while I call my parents and apologize for not amounting to much.

Lesson #2: Tattoos are more leverageable than music.

"THQ had literally millions of songs to choose from when deciding what music clips to include in its games," said the motion for reconsideration. "There was no restriction on their choice. Thus, they had the opportunity to choose the least expensive music license they could get. To produce a UFC computer game, however, THQ had a limited number of fighters to choose from and had no choice but to either not include the fighter's tattoo on the avatars or include it. That fact alone would have placed Escobedo in a very different bargaining position than the music publisher and makes it likely that Escobedo would have negotiated a per game royalty rather than a one-time fee."

Well, the real lesson to learn here is that apparently tattoo artists have had augmentation procedures a la Deus Ex installed within their bodies that prevent video game companies from telling them to go outside and play hide-and-go-f$%#-yourself, because any licensing request such as what is written above would have been laughed out of THQ's office. In other words, you can't really claim harm when you assert that you would have bargained from a position that never would have been entertained. And who knew that tattoos were as, or more, valuable than music? That means that anyone attending a Maroon 5 concert is there for Adam Levine's body-ink as much as or more than they are for their music. And if that makes any sense to you, punch yourself in the face until your brain reboots.

Lesson #3: Too many people apply the rules of baseball to the rest of life.

The bankruptcy judge decided to keep the $22,500 valuation. Having swung and missed twice, Escobedo is now appealing the order to a bankruptcy appellate panel.

Friends, tattoo artists, everyone: if at first you don't succeed, and the second time you don't succeed, and you're just a jackass looking for an insane amount of money when an amount that breaks epidermal logic has already been offered to you, don't think that you have to get that third strike. Unlike baseball, you can just walk away, head for the dugout, and admit defeat. Which Escobedo should do, not only because he's on the losing side of a really dumb argument, but also because the more he pushes this, the more likely we get a ruling on whether he has a copyright claim on a picture he drew on someone else's skin at all.

IP Arrow claims to represent Zuffa Inc., better known as the parent company of the UFC (Ultimate Fighting Championship.) We know algorithms are flawed but whatever software IP Arrow is deploying seems to randomly collect links and dump them in a DMCA notice. (Second theory: an IP Arrow employee's personal searches are somehow making their way onto the submitted forms.)

The UFC is notorious for aggressively pursuing infringement of its PPV events. Apparently, there's plenty of pre-recorded stuff floating around the net and the UFC wants that gone, too. Unfortunately for the UFC, it gave this job to IP Arrow. In return, IP Arrow has filed a DMCA request claiming (remember, this request is a sworn statement) that the UFC is the rights holder for (possible) child porn.

I'll go ahead and make the bold statement that these photos of naked teenagers are not Zuffa/UFC's "work." I can't (or rather won't) attempt to verify whether these photos are actual child porn. But that's not really the issue. The fact is that IP Arrow is issuing takedown links to files that appear to be child porn while making the claim that Zuffa/UFC hold the copyright to these photos.

This isn't the only issue with the DMCA request, but it's by far the most damaging one. The rest of the notice contains some links to UFC content, but those links are the minority. This isn't a case of a few inadvertent links being swept up because of similar keywords or file names. This is a nearly-random link dump that requests takedowns of a wide variety of content completely unrelated to the UFC.

That's just a sampling of what's claimed to be UFC's copyrighted content by IP Arrow.

According to Google's transparency report, IP Arrow is new to the anti-piracy game, having first showed up on August 5th. Since then, it has been very busy, firing off 61 takedown requests for 47,000 links in just over two weeks. Its other requests haven't been much better in terms of targeting only infringement of its clients' work. (Other clients are Lynda.com and Lionsgate Films.)

A takedown request on behalf of Zuffa/UFC sent August 5th asks for the removal of (among several other things) episodes of Big Bang Theory, a version of Nero Burning ROM and an album by the Handsome Furs. Here's an unedited chunk of one request, which shows the range of content IP Arrow is attempting to take down.

Yes. IP Arrow is even asking to have the entire results of a search for the term ".rar" taken down.

Yes. That's right. According to IP Arrow, Lynda.com has produced a variety of pornographic videos, including "icest rape porn." Much like Zuffa/UFC above, I'm sure Lynda.com appreciates having its name associated with potentially illegal material.

Attempting to discover anything about IP Arrow's methodology is a dead end. Its website [which is down at the moment - cache link] is barely more than a placeholder (with a rather long TOS), sporting bold icons against a 1970s wood panel backdrop. It makes a few broad statements about how "different" its service is but contains no actual information as to how it performs this "different" work.

Judging from the quality of the DMCA notices it's issued, IP Arrow either has no idea what it's doing or just doesn't care. What's worse is that its submitted links have been taken down nearly 100% of the time, despite the fact that its DMCA notices are loaded with content its clients don't own. Its work for Lionsgate seems to be slightly more accurate than its takedowns for Lynda and Zuffa, but even those have a number of errors as well. Here it is attempting to take down infringing copies of one of the worst titled sequels ever, "The Haunting in Connecticut 2: Ghosts of Georgia."

Once again, a legitimate company is also a distributor of teen porn according to IP Arrow.

I've contacted the companies IP Arrow is currently issuing takedowns for (along with IP Arrow itself -- whose site is now mysteriously down) and will update if I receive any replies. While I appreciate the fact that these companies are seeking to protect their copyrighted material, I think they should be concerned that the agent representing them is now linking their names with very questionable porn. They should also be concerned that these sworn statements are also claiming they "own" copyrighted content belonging to others, but I would imagine things like "incest porn" and "15 year old vaginas" appearing on takedown requests in their names will be more troubling to them than the serialized false statements IP Arrow is issuing.

from the that-doesn't-seem-right dept

Rob points us to news about a fight that broke out in the audience at a UFC event in Toronto recently. Of course, we couldn't care less about the fight itself, but what's interesting is that the video of the fight in the audience has been taken down, due to a copyright claim from UFC:

At least for the time being, you can still see the video elsewhere, and I can't see how UFC has any sort of reasonable copyright claim on it. Whoever took the video may have a copyright claim, but UFC? Perhaps it can make a weak argument that some of the audio in the background is UFC's? But even then it seems like the claim is a huge stretch. Perhaps UFC thinks it automatically gets the copyright on anyone fighting on the premises? Once again, this seems like a case of copyright being used to censor content someone doesn't want people to see/hear/read, rather than a legitimate use of copyright.

from the someone-want-to-give-them-a-recap-how-that-worked-for-the-RIAA dept

There's something that just drives some executives nuts about the idea that someone might access their content "without paying" directly for it. We saw this last year when music industry execs kept saying they had to stop going to war against consumers, but immediately followed that up by saying that none of that mattered if they couldn't stomp out "piracy." It's as if the second any sort of unauthorized use occurs, the entire "cost-benefit" analysis goes out the window. If it's costing you more to try to stop unauthorized access, and it's not working, and there are ways to embrace it that makes you more money, the solution should be simple: you stop worrying and start embracing.

Apparently that message hasn't gotten through to the folks who own Ultimate Fighting Championship (UFC). Perhaps it's not too surprising that such a group's only reaction is to fight, but when they even admit that fighting unauthorized access will cost more than any "losses," you have to wonder how any executive at the company keeps his job. That's a recipe for getting fired: "Hey, I'm going to undertake an action that will cost us more than not taking this action -- oh, and it's likely to piss off a bunch of our biggest fans as well."

This isn't a huge shock. Last month, a UFC exec was at that Judiciary Committee hearing about unauthorized access to live streaming sporting events, and played the role of the RIAA/MPAA lobbyists claiming "them stealers are destroying our business." Given that, it's no surprise that UFC is gearing up to go after both sites like Justin.tv and the individuals themselves. Apparently, UFC's fight-first, think-later execs haven't noticed how badly similar plans have backfired. Most of the streaming websites have pretty strong DMCA safe harbor protections, and suing users hasn't worked out particularly well for the RIAA. Furthermore, pissing off your fans? Yeah, not such a hot move.

Meanwhile, the Torrentfreak article above does a really nice job breaking down just how many people willingly pay huge sums to watch UFC events on Pay-Per-View, and how that number keeps on growing. There was apparently a dip in a recent fight, but TF notes that it probably had more to do with one of the headlining fighters having to back out. What does become clear is that UFC has no problem convincing huge numbers of people to pay up huge amounts to watch its events. Pissing off a lot of fans with ridiculous lawsuits doesn't make anyone more likely to buy.

Hell, even Joe Rogan, the comedian (and notorious hater of "joke stealers") who also acts as commentator for UFC seems to think this is a bad idea, saying: "I think that kind of stifles innovation. It stifles the direction the internet is going. I like things being out there. I think people are always going to buy UFC pay-per-views. You're going to get a much better experience watching it on your television than all stretched out looking fuzzy and pixilated. They're trying to protect their money, but the internet is a strange animal."